Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

************************************************
The “officially released” date that appears near the
beginning of an opinion is the date the opinion will be
published in the Connecticut Law Journal or the date it
is released as a slip opinion. The operative date for the
beginning of all time periods for the filing of postopinion
motions and petitions for certification is the “officially
released” date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports. In the event
of discrepancies between the advance release version of
an opinion and the version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is
to be considered authoritative.
The syllabus and procedural history accompanying an
opinion that appear in the Connecticut Law Journal and
subsequently in the Connecticut Reports or Connecticut
Appellate Reports are copyrighted by the Secretary of the
State, State of Connecticut, and may not be reproduced
or distributed without the express written permission of
the Commission on Official Legal Publications, Judicial
Branch, State of Connecticut.
************************************************
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

VESSEL RE HOLDINGS, LLC v. TOWN PLAN
AND ZONING COMMISSION OF THE
TOWN OF GLASTONBURY
(AC 48315)
Suarez, Westbrook and Wilson, Js.

Syllabus

The defendant town plan and zoning commission appealed, on the granting of
certification, from the trial court’s judgment sustaining in part the plaintiff’s
appeal from the defendant’s decision denying the plaintiff’s application for
an affordable housing development. The court determined that the industrial
zone exception in the statute (§ 8-30g (g) (2) (A)) governing affordable hous-
ing land use appeals did not apply and remanded the case to the commission
for further proceedings under § 8-30g (g) (1). The defendant claimed, inter
alia, that the court erred in concluding that a zone where multiple uses are
authorized was nonetheless not a zone authorizing industrial uses as that
phrase was employed in § 8-30g (g) (2) (A). Held:

This court dismissed the appeal for lack of subject matter jurisdiction, as
the trial court’s decision was not an appealable final judgment in light of
the trial court’s remand order for further proceedings on the plaintiff’s
application pursuant to § 8-30g (g) (1).

Argued September 18, 2025—officially released February 3, 2026

Procedural History

Appeal from the decision of the defendant denying the
plaintiff’s application for an affordable housing devel-
opment, brought to the Superior Court in the judicial
district of Hartford, where the court, O’Hanlan, J.,
granted the motion to intervene as defendants filed by
65 Kreiger Lane, LLC, et al.; thereafter, the case was
tried to the court, O’Hanlan, J.; judgment sustaining
in part the plaintiff’s appeal and remanding the case to
the defendant for further proceedings, from which the
defendant, on the granting of certification, appealed to
this court. Appeal dismissed.
Kenneth R. Slater, Jr., for the appellant (defendant).
Timothy S. Hollister, with whom, on the brief, was
Andrea Gomes, for the appellee (plaintiff).
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

Opinion

WILSON, J. The plaintiff, Vessel RE Holdings, LLC,
appealed to the Superior Court pursuant to General
Statutes § 8-30g1 from the denial of its application for an
affordable housing development by the defendant Town
Plan and Zoning Commission of the Town of Glaston-
bury (commission).2 The town of Glastonbury (town)
is subject to the appeals procedure codified in § 8-30g
because it does not have at least 10 percent affordable
housing stock. See General Statutes § 8-30g (k). Fol-
lowing the plaintiff’s appeal to the Superior Court, the
commission bore the burden of proving, on the basis of
the evidence in the record compiled before it, that its
denial of the plaintiff’s application was proper because
1
General Statutes § 8-30g provides in relevant part: “(f) . . . [A]ny
person whose affordable housing application is denied, or is approved
with restrictions which have a substantial adverse impact on the viability
of the affordable housing development or the degree of affordability of
the affordable dwelling units in a set-aside development, may appeal
such decision pursuant to the procedures of this section. . . .
“(g) Upon an appeal taken under subsection (f) of this section, the
burden shall be on the commission to prove, based upon the evidence
in the record compiled before such commission, that the decision from
which such appeal is taken and the reasons cited for such decision are
supported by sufficient evidence in the record. The commission shall
also have the burden to prove, based upon the evidence in the record
compiled before such commission, that (1) (A) the decision is necessary
to protect substantial public interests in health, safety or other matters
which the commission may legally consider; (B) such public interests
clearly outweigh the need for affordable housing; and (C) such public
interests cannot be protected by reasonable changes to the affordable
housing development, or (2) (A) the application which was the subject
of the decision from which such appeal was taken would locate afford-
able housing in an area which is zoned for industrial use and which does
not permit residential uses; and (B) the development is not assisted
housing. If the commission does not satisfy its burden of proof under
this subsection, the court shall wholly or partly revise, modify, remand
or reverse the decision from which the appeal was taken in a manner
consistent with the evidence in the record before it. . . .”
2
The record reflects that the trial court granted the motion to intervene
as party defendants filed by 65 Kreiger Lane, LLC, and 36 Kreiger Lane,
LLC. Both of these entities argued that they were aggrieved by virtue
of the fact that their land abuts or lies within 100 feet of the property
at issue in the plaintiff’s application.
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

(1) the conditions set forth in § 8-30g (g) (1) were satisfied
or (2) the industrial zone exception codified in § 8-30g
(g) (2) applied. The commission denied the application
on the sole ground that the industrial zone exception
under § 8-30g (g) (2) (A) applied. Although evidence was
presented on the merits of whether § 8-30g (g) (1) applied
to the plaintiff’s application, the commission did not
address this issue because it had determined that the
industrial zone exception applied.
The issue on appeal before the Superior Court was
whether the commission properly determined that the
area where the plaintiff sought to construct the afford-
able housing development fell within the industrial zone
exception under § 8-30g (g) (2) (A). The plaintiff also
claimed on appeal that in light of the refusal by the com-
mission to address the merits of whether the provisions
of § 8-30g (g) (1) applied to the plaintiff’s application,
its application should have been deemed approved under
General Statutes § 8-3 (g) (1).3 The plaintiff further
argued that when the commission failed to review the
site plan under § 8-30g (g) (1) after it closed the public
hearing on March 21, 2023, the site plan was presumed
to be approved under § 8-3 (g) (1). The plaintiff argued
that the commission waived its right to review the site
plan for failing to review it under § 8-30g (g) (1) during
its deliberations on March 21, 2023. The trial court
determined that the industrial zone exception did not
apply and sustained the plaintiff’s appeal in part. Hav-
ing determined that the industrial zone exception did
not apply, the court remanded the matter for further
proceedings on the plaintiff’s application under § 8-30g
(g) (1).
Following a grant of certification to appeal by this
court, the commission appeals from the trial court’s
decision, claiming that the court erred (1) in finding that
the Planned Commerce Zone (PCZ), where no property
3
General Statutes § 8-3 (g) (1) provides in relevant part: “Approval
of a site plan shall be presumed unless a decision to deny or modify it is
rendered within the period specified in section 8-7d. . . .”
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

can be developed with a residential use of any kind, is a
zone that permits residential uses simply because § 4.15.1
of the town’s Building-Zone Regulations (regulations)
provides that preexisting residences are permitted in
the zone, and (2) in concluding that a zone where mul-
tiple uses are authorized was nonetheless not a zone
authorizing industrial uses as that phrase is employed
in § 8-30g (g) (2).
The plaintiff argues, inter alia, that this court lacks
subject matter jurisdiction over the commission’s appeal
because the trial court’s decision is not an appealable
final judgment in light of the court’s remand order for
further proceedings on its application under § 8-30g (g)
(1). The plaintiff argues that, because the court remanded
the case for further proceedings on the merits of the
plaintiff’s application under § 8-30g (g) (1), which was
before the commission at the time it denied the applica-
tion based on the industrial zone exception under § 8-30g
(g) (2) (A), the trial court’s decision is not an appealable
final judgment. The plaintiff argues that the purpose of
the final judgment rule is to avoid “ ‘piecemeal’ ” appeals
and that, with certification having been granted in this
appeal, piecemeal proceedings are underway because
the parties will litigate the industrial zone exception
before this court, and, if the trial court is affirmed, the
merits of the application will then be addressed by the
commission, and, if denied, certification and a possible
appeal will follow.
The commission argues that, in the context of the
statutory scheme at issue in this case, which employs
two mutually exclusive grounds for reviewing set-aside
affordable housing applications, the trial court’s decision
regarding whether the commission satisfied its burden
under the industrial zone exception, § 8-30g (g) (2) (A),
is an appealable final judgment notwithstanding that the
commission will have to proceed to evaluate the merits
of the application under § 8-30g (g) (1) if the commission
is unsuccessful on appeal. The commission argues that
the trial court’s remand order for the commission to
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

consider the merits of the plaintiff’s application under
the alternative ground pursuant to § 8-30g (g) (1) can-
not have any effect on the trial court’s decision finding
that the industrial zone exception under § 8-30g (g) (2)
(A) does not apply, which is the subject of this appeal.
The commission argues that the issue decided by the
trial court has been fully and finally decided. We are not
persuaded and conclude that the commission’s appeal
was not taken from a final judgment and, as a result,
dismiss the appeal.
The following facts and procedural history taken from
the trial court’s decision are relevant to our resolution of
the issues on appeal. “The plaintiff applied to the com-
mission for a site plan to construct an affordable hous-
ing development consisting of forty-eight one bedroom
rental apartments in a single building at 51 Kreiger Lane
in Glastonbury. . . . The subject property is a 0.93 acre
lot on the northerly side of Kreiger Lane, approximately
550 feet east of the intersection of Kreiger Lane and Oak
Street. . . . The lot is located in the town’s [PCZ] and is
described in § 4.15 of the [regulations], effective April
14, 2004. . . . The property is surrounded by industrial,
commercial, and residential uses, including a multifam-
ily development and a daycare. . . .
“The plaintiff propose[d] a set-aside development, as
defined by § 8-30g (a) (6), with fifteen units, or 30 per-
cent of the total units proposed in the application, rent
restricted for forty years. . . . Approximately half of
these set-aside units would be available to people earn-
ing 80 percent or less of the area or state median income,
whichever is less, and the other half would be available
to people earning 60 percent or less of the area or state
median income, whichever is less. . . .
“Between the filing of the plaintiff’s application on
November 14, 2022, and the beginning of the public hear-
ing on February 21, 2023, the application was reviewed
by town agencies and offices that typically comment on
such applications and the commission’s staff received
updates concerning these reviews. The staff report to
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

the commission prior to the February 21, 2023 public
hearing references reviews received as of that date and
cite[d] no criticism or deficiency in the site plan or the
affordability plan. . . .
“While the plaintiff’s application was being reviewed
by town agencies and staff, but before the public hearing
began, the town manager requested an opinion from the
town’s attorney as to whether the PCZ ‘is eligible for
affordable housing applications under . . . [the statute].’ .
. . Citing to three Superior Court decisions . . . the opinion
letter . . . concluded that the statute’s appeals procedures
would not apply to an application in the PCZ because the
zone was industrial and did not allow residential uses
and, therefore, fit the industrial zone exception under
§ 8-30g (g) (2). . . .
“In response, the plaintiff submitted an opinion letter
. . . [c]iting to the same three Superior Court decisions
as the town’s counsel, in addition to other Connecticut
court decisions regarding statutory interpretation and
the affordable housing policies and purpose behind the
statute, [in which] counsel opined that the industrial
[zone exception] in the statute does not apply to the PCZ
because it is not an industrial zone, as evidenced by its
title, by the fact that an industrial zone exists elsewhere
in the town, and because the PCZ permits residential
uses as of right.” (Citations omitted; footnotes omitted.)
At the February 21, 2023 public hearing, there was
testimony on the application from the plaintiff’s team
of consultants, who gave a detailed presentation of the
application. The commission followed with questions
“about, among other things, the plaintiff’s experience
in housing and affordable housing, the traffic study, the
engineering and stormwater management on the site,
lighting, sustainability features in the architecture, the
building design and materials, the ‘snow plow’ plan, the
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

‘target’ renters for small, one bedroom units, and how
these renters fit into its affordability plan. . . .
“Additionally, neighboring business owners testified
against the plaintiff’s application expressing concerns
about safety. . . . The commission further discussed
with its counsel . . . and the plaintiff’s counsel whether
the industrial zone exception applied and talked about
specific uses and changes in the uses of the properties in
the PCZ following its creation. . . .
“Ultimately, members on the commission requested
that the town attorney provide more information about
residential uses in the PCZ regulation and the industrial
zone exception in the statute before scheduling the next
public hearing session for March 21, 2023. . . .
“[T]own counsel submitted a legal memorandum, dated
March 14, 2023, with copies of the same three Superior
Court decisions cited in their earlier letter, and two other
Superior Court decisions, arguing that the industrial
zone exception applied. . . . The memorandum also dis-
cussed the legislative history of the industrial zone excep-
tion in the statute. . . . It did not contain, however, any
information about the legislative history of the PCZ or
why the . . . regulations treated residential uses as it did.
“At the continuation of the public hearing on March
21, 2023, the plaintiff’s counsel updated the commission
on minor changes to the plans in response to comments
from reviewing town offices and provided answers to
the commission’s questions from the February 21, 2023
public hearing session. . . . No commission member or
staff mentioned that the application did not meet the
site plan standards in the regulations or was defective
in any other way. This final presentation by the plaintiff
represented a little more than one quarter of the public
hearing session. The remaining three quarters of the
public hearing consisted of town counsel’s explanation of
its March 14, 2023 memorandum, neighbor comments,
including those of counsel representing the defendant-
intervenors in [the] appeal, 36 Kreiger Lane, LLC, and
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

65 Kreiger Lane, LLC, and discussion of the opposing
opinions regarding the industrial zone exception, and
the nature of the uses in the PCZ.” (Citations omitted;
footnote omitted.)
The commission closed the public hearing without any
members mentioning or inquiring about the site plan, its
compliance with the regulations, or the input from the
various town agencies that had reviewed and provided
input resulting in changes to the site plan by the plaintiff.
Rather, the commission members stated their agreement
with town counsel’s opinion that the industrial zone
exception applied and consequently denied the plaintiff’s
application on that sole ground. The commission gave
five reasons for denying the plaintiff’s application:
“1. The proposed project would locate affordable hous-
ing in an area which is zoned for industrial use; the [PCZ].
“2. The [PCZ] permits a typical range of industrial
uses, including eight . . . different types of manufac-
turing uses; bus garaging and equipment maintenance;
construction services; excavation and filling of earth
products; finance, insurance and real estate services;
motor freight transportation terminal and garage; motor
vehicle car wash and general repair and service; profes-
sional offices and services; various indoor recreation and
fitness uses; utilities; vocation schools; warehousing;
and retail trade.
“3. The [PCZ] does not permit new residential uses.
“4. The [PCZ] fits the statutory exemption from the
Affordable Housing Land Use Appeals Act [§ 8-30g (g)]
because it allows what are overwhelmingly industrial-
type uses while excluding new residential uses.
“5. Because the [PCZ] is not subject to the Affordable
Housing Land Use Appeals Act, the project must be
evaluated based on its conformance or lack thereof, with
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

the [regulations], which prohibit the proposed residential
use in this location.”
As previously noted, the plaintiff timely appealed the
commission’s denial of its application to the Superior
Court. The commission argued before the court that
its denial was proper because the PCZ falls within the
industrial zone exception codified in § 8-30g (g) (2) (A)
as an area that is zoned for industrial zone use, and
which does not permit residential uses. The commission
further argued that, if the industrial zone exception
does not apply, the court should remand the case back
to the commission for it to evaluate the site plan under
§ 8-30g (g) (1).
The plaintiff argued that the industrial zone exception
does not apply because the PCZ, by name and by purpose,
is not an area zoned for industrial use and, in fact, does
permit residential uses as of right. Additionally, the
plaintiff noted that the commission allowed both full
review of the site plan by staff and town agencies and
full presentation of the site plan by the plaintiff at two
public hearing sessions, but failed to act on the site plan
under § 8-30g (g) (1) within the time frame set forth in
§ 8-3 (g) (1). Thus, the plaintiff argued, the court should
conclude that the commission had waived its opportunity
to give reasons under § 8-30g (g) (1) why the application
should be denied and should therefore deem the applica-
tion approved as a matter of law.
After hearing oral arguments on the appeal and after
having exercised its plenary review of the record, the
court found that “the PCZ was created from a former
industrial zone, in an area near and containing existing
residential and commercial uses. Under the regulations,
the PCZ allows a multitude of nonresidential uses by
special permit and permits single- and two-family resi-
dential uses as of right. Therefore, the commission has
failed to meet its burden to prove that the PCZ is ‘located
in an area which is zoned for industrial use’ and ‘does
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

not permit residential uses.’ Accordingly, the industrial
[zone] exception under § 8-30g (g) (2) does not apply.”
The court rejected the plaintiff’s argument that the
application should be deemed approved under § 8-3 (g)
(1) and agreed with the commission that “the word ‘or’
between § 8-30g (g) (1) and (2) means that the commission
may choose one or the other as the basis for its decision.”
As further support for its conclusion, the court stated:
“Especially in the context of applications for affordable
housing, in which the developments are generally large
and not compliant with underlying zoning, the applica-
tion is inextricably dependent upon the site plan and
its other components, including the affordability plan.
Consequently, the commission should conduct a robust
review and deliberation of the site plan and support-
ing materials under § 8-30g (g) ([1]). . . . This having
not occurred in the present case, the court decline[d] to
deem the plaintiff’s application approved under § 8-3
(g).” (Citation omitted.) The court also found that the
commission had not waived its right to review the site
plan because it did not review it under § 8-30g (g) (1).
The “court recognize[d] . . . and the record reveal[ed]
that the plaintiff’s application received the full range
of staff reviews and scrutiny that an application for a
land use permit in the town is typically subjected to,
including scrutiny by the commission itself during the
public hearings. Nor [was] it disputed that each aspect
of the plaintiff’s application did in fact pass muster,
either on its own, or after modification and resubmittal
to the respective official, office, or agency to which the
commission staff referred it. Thus, [the court concluded
that] a fulsome record exists upon which the commission
may resume its obligation to evaluate the application
under § 8-30g (g) (1) of the statute.”
Having concluded that the industrial zone exception
did not apply to the plaintiff’s application, the court
sustained the plaintiff’s appeal in part and remanded
the matter to the commission for further proceedings on
the plaintiff’s application under § 8-30g (g) (1). The court
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

further ordered that “[t]he commission may not supple-
ment the record further with evidence or testimony and
must begin its deliberations anew, with an open mind, to
review the application, all documents and testimony in
the record to date relating to the proposed development
on the site under § 8-30g (g) (1). The commission must
disregard any previous discussion before the commission
and between and among the commission members about
the industrial [zone] exception and any documents and
testimony pertaining thereto, including the vote taken
on March 21, 2023, as if it had never been heard, stated,
submitted, read, or even taken place.
“Once the commission has rendered its decision, the
commission’s counsel shall supplement the record of
these additional proceedings and the commission’s deci-
sion, and the court will conduct further proceedings as
necessary.”
We begin our analysis of the jurisdictional argument
raised by the plaintiff by recognizing that “[t]he lack of a
final judgment implicates the subject matter jurisdiction
of an appellate court to hear an appeal. A determination
regarding . . . subject matter jurisdiction is a question
of law . . . . We commence the discussion of our appel-
late jurisdiction by recognizing that there is no consti-
tutional right to an appeal. . . . Article fifth, § 1, of the
Connecticut constitution provides for a Supreme Court,
a Superior Court and such lower courts as the [G]eneral
[A]ssembly shall . . . ordain and establish, and that [t]he
powers and jurisdiction of these courts shall be defined
by law. . . . To consider [a claim challenging this court’s
subject matter jurisdiction over an appeal], we must
apply the law governing our appellate jurisdiction, which
is statutory. . . . The legislature has enacted . . . [General
Statutes] § 52-263, which limits the right of appeal to
those appeals filed by aggrieved parties on issues of law
from final judgments. Unless a specific right to appeal
otherwise has been provided by statute, we must always
determine the threshold question of whether the appeal
is taken from a final judgment before considering the
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

merits of the claim . . . . Further, we have recognized that
limiting appeals to final judgments serves the important
public policy of minimizing interference with and delay
in the resolution of trial court proceedings.” (Emphasis in
original; internal quotation marks omitted.) Torrington
v. Council 4, AFSCME, AFL-CIO, Local 442, 224 Conn.
App. 237, 242–43, 312 A.3d 1112 (2024). “The policy
concerns underlying the final judgment rule are [also] to
discourage piecemeal appeals and to facilitate the speedy
and orderly disposition of cases at the trial court level.
. . . The appellate courts have a duty to dismiss, even on
[their] own initiative, any appeal that [they lack] juris-
diction to hear.” (Internal quotation marks omitted.)
Krausman v. Liberty Mutual Ins. Co., 195 Conn. App.
682, 687, 227 A.3d 91 (2020).
“Thus, [a]s a general rule, an interlocutory ruling
may not be appealed pending the final disposition of a
case. . . . In determining whether a judgment or a rul-
ing is an immediately appealable final judgment, courts
have routinely looked to a statute’s text to see if the
legislature has provided an express right to appeal. . .
. In those instances [in which] the legislature has not
provided such an express right, our courts then continue
to consider whether the right at issue implicates one of
the two prongs set forth in State v. Curcio, [191 Conn.
27, 31, 463 A.2d 566 (1983)].” (Internal quotation marks
omitted.) Torrington v. Council 4, AFSCME, AFL-CIO,
Local 442, supra, 224 Conn. App. 243.
In Curcio, our Supreme Court determined that an
otherwise interlocutory order is appealable in two cir-
cumstances: (1) where the order or action terminates a
separate and distinct proceeding, or (2) where the order or
action so concludes the rights of the parties that further
proceedings cannot affect them. State v. Curcio, supra,
191 Conn. 31.
“ ‘The “separate and distinct” requirement of Curcio
demands that the proceeding which spawned the appeal
be independent of the main action. . . . This means that
the “separate and distinct proceeding,” though related
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

to the central cause, must be severable therefrom. The
question to be asked is whether the main action could pro-
ceed independent of the ancillary proceeding.’ ” Lakeside
Estates, LLC v. Zoning Commission, 100 Conn. App.
695, 700, 919 A.2d 1044 (2007). Finally, as this court
has observed, “the final judgment rule applies equally to
zoning appeals as to other appeals.” Id., 699.
To satisfy the first prong of the Curcio test for finality,
one would have to show that the trial court’s determina-
tion that the industrial zone exception under § 8-30g (g)
(2) did not apply terminated a separate and distinct pro-
ceeding. The record does not demonstrate this. Before the
commission was the plaintiff’s application for approval of
its site plan to construct affordable housing in a certain
area of Glastonbury. As previously noted, following the
plaintiff’s appeal to the Superior Court, the commission
bore the burden of proving, on the basis of the evidence in
the record compiled before it, that its denial of the plain-
tiff’s application was proper because (1) the conditions set
forth in § 8-30g (g) (1) were satisfied or (2) the industrial
zone exception codified in § 8-30g (g) (2) applied. Thus,
the plaintiff submitted evidence before the commission
in support of approval of its application under § 8-30g
(g) (1). The commission, however, denied the application
on the sole ground that the industrial zone exception
applied. Because the trial court determined that the
exception did not apply, it agreed with the commission
that the commission was entitled to a review of the site
plan under § 8-30g (g) (1) and therefore remanded the
case to the commission for further proceedings. Indeed,
in its memorandum of decision, the court observed that,
although the commission argued that its finding that
the industrial zone exception applied “effectively denied
the site plan,” it nonetheless agreed that, “if the court
were to remand the commission’s decision [for further
proceedings under § 8-30g (g) (1)] . . . the record on this
application would be sufficient for the commission to
renew its deliberations.” The trial court’s determina-
tion that the industrial zone exception did not apply,
therefore, did not terminate a separate and distinct
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

proceeding. Rather, the court’s determination required it
to remand the case for further proceedings on the merits
of the plaintiff’s application for affordable housing and
whether § 8-30g (g) (1) applied. Thus, the first prong of
Curcio has not been met.
We next consider whether there is an appealable final
judgment pursuant to Curcio’s second prong, i.e., that
the determination by the trial court that the industrial
zone exception does not apply so concludes the rights of
the parties that further proceedings cannot affect them.
“[F]or an interlocutory ruling in either a criminal or a
civil case to be immediately appealable under the second
prong of Curcio, certain conditions must be present.
There must be (1) a colorable claim, that is, one that is
superficially well founded but that may ultimately be
deemed invalid, (2) to a right that has both legal and
practical value, (3) that is presently held by virtue of
a statute or the state or federal constitution, (4) that
is not dependent on the exercise of judicial discretion
and (5) that would be irretrievably lost, causing irrepa-
rable harm to the appellants without immediate review.”
(Internal quotation marks omitted.) Wells Fargo Bank
of Minnesota, N.A. v. Jones, 85 Conn. App. 120, 125,
856 A.2d 505 (2004).
The commission has statutory authority in zoning
matters, including the authority to apply relevant regula-
tions in acting on the plaintiff’s application. See General
Statutes § 8-1 (a) (municipality is authorized to “exercise
through a zoning commission the powers granted [under
chapter 124 of the General Statutes]”). The commission,
however, is unable to demonstrate that it has a colorable
claim to a right, of legal and practical value and not
dependent on the exercise of judicial discretion, that is
presently held by it and which would be irretrievably lost
in the absence of immediate review of the trial court’s
decision to sustain the plaintiff’s appeal. Indeed, there
is no basis to conclude that any change involving the
subject property will occur imminently, as the purpose
of the proceedings on remand is to determine whether the
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

plaintiff’s application should be approved under § 8-30g
(g) (1). Our judgment dismissing this appeal does not
prohibit the commission from appealing from the trial
court’s decision that the industrial zone exception does
not apply in this case if, following the proceedings on
remand related to § 8-30g (g) (1) and any zoning appeal
related thereto, the commission is aggrieved by a final
judgment concerning the application.
“The second prong of the Curcio test focuses on the
nature of the rights involved. It requires the parties
seeking to appeal to establish that the trial court’s order
threatens the preservation of a right already secured to
them and that that right will be irretrievably lost and
the [parties] irreparably harmed unless they may imme-
diately appeal. . . . One must make at least a colorable
claim that some recognized statutory or constitutional
right is at risk.” (Internal quotation marks omitted.) In
re Marcquan C., 202 Conn. App. 520, 533–34, 246 A.3d
41, cert. denied, 336 Conn. 924, 246 A.3d 492 (2021).
“There is a narrow category of cases allowing an imme-
diate interlocutory appeal under the second prong of
Curcio. The cases involve monetary loss that cannot be
recouped upon subsequent appeal . . . or involve custody
of a child during the course of dissolution proceedings
[that] cannot otherwise be vindicated at any time, in any
forum . . . or involve reinstatement in an employment
dispute involving wages that cannot be recovered even
if the defendant eventually wins . . . or involve a claim
of sovereign immunity that grants immunity not only
from liability but from suit itself.” (Internal quotation
marks omitted.) Wells Fargo Bank of Minnesota, N.A.
v. Jones, supra, 85 Conn. App. 125–26. The commission
has not established that the present appeal falls into this
narrow category of cases.
This court’s decision in Barry v. Historic District Com-
mission, 108 Conn. App. 682, 950 A.2d 1, cert. denied,
289 Conn. 942, 959 A.2d 1008 (2008), and cert. denied,
289 Conn. 942, 959 A.2d 1008 (2008), is instructive
with respect to our application of the Curcio test in the
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

present case. Barry, like the present case, involved a
remand order from the trial court in a zoning appeal. In
Barry, the historic district commission of the borough
of Litchfield denied the application for a certificate of
appropriateness as to exterior architectural features filed
by the plaintiff for proposed changes to the facade of her
house. Id., 683. On appeal from the commission’s deci-
sion, the trial court sustained the plaintiff’s appeal. Id.
The commission appealed from that judgment, claiming
that the court improperly determined that the plaintiff’s
right to fundamental fairness had been violated because
a commission member, who recused himself from voting
on the application, testified adversely to the proposal as
an expert and as a member of the general public at the
time of the public hearing. Id. The plaintiff filed a cross
appeal, claiming that the court improperly determined
that her application was not automatically approved
when the commission failed to comply with the time
requirements set forth in General Statutes § 7-147e (b)
and that the recused commission member did not violate
the commission’s bylaws when he testified at the public
hearing. Id., 683–84.
After the filing of the appeal and the cross appeal, the
trial court issued an articulation, pursuant to an order
of this court, issued sua sponte, in which it stated that
it “implicitly remanded the case to the defendant com-
mission for a new hearing.” (Internal quotation marks
omitted.) Id., 684. The commission amended its pre-
liminary statement of issues by adding the claim that
this court lacked jurisdiction because the trial court’s
decision was not a final judgment. Id. In concluding
that the trial court’s decision was a final judgment, this
court conducted an exhaustive review of cases involving
the determination of final judgments in zoning appeals,
particularly where the trial court issues a remand order.
Id., 688–97.
This court, following its review of relevant precedent,
observed that “there are three general types of remands
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

in administrative appeals that give rise to final judgment
concerns. Two of them are analyzed in Schieffelin & Co.
[v. Dept. of Liquor Control, 202 Conn. 405, 521 A.2d
566 (1987)].4 The first remand discussed in Schieffelin
& Co. is a remand that involves a second hearing on the
very issue that the agency already decided. An appeal
will lie from such a remand. This type of remand may
be implicit, as where a trial court simply sustains an
appeal without any further orders. See Schieffelin & Co.
v. Dept. of Liquor Control, supra, [410]. The second type
of remand addressed in Schieffelin & Co. is a remand that
requires that the agency hold a new hearing on an issue
that it has never before considered. In that event, the
trial court’s judgment may not be immediately appealed
because the agency proceedings are incomplete; it has
not finished adjudicating the application or petition
before it. Id. The third type of remand is discussed in
Kaufman [v. Zoning Commission, 232 Conn. 122, 653
A.2d 798 (1995)]. This type of remand, which is most
often encountered in zoning cases, consists of an order
that requires the agency to grant or approve a permit or
other application. The remand order also addresses any
conditions that may attach to the agency’s action and
may require further proceedings as to the conditions.
If the remand as to the conditions requires a hearing at
which the agency will need to exercise it[s] discretion,
the remand is not a final judgment. On the other hand,
if further proceedings on the conditions will entail only
ministerial determinations, the remand is a final judg-
ment. Kaufman v. Zoning Commission, supra, [130–31].
4
“The holding in Schieffelin & Co. has been superseded by statute for
cases appealed pursuant to the Uniform Administrative Procedure Act
[UAPA], General Statutes § 4-166 et seq. The legislature amended the
act in 1988, explicitly providing that where the court issues a remand
pursuant to General Statutes § 4-183 (j), the remand is a final judgment
for purposes of appeal irrespective of the nature of the remand and the
administrative proceedings that are expected to follow it.” Barry v.
Historic District Commission, supra, 108 Conn. App. 690 n.3. The pres-
ent case is not an administrative appeal under the UAPA but, rather, a
zoning appeal under the affordable housing statute, § 8-30g (g).
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

Under either Kaufman scenario, the applicant will not
be deprived of the permit or approval that it originally
sought, but whether the trial court has rendered a final
judgment will depend on whether the commission has
completed its discretionary action.” (Footnote added.)
Barry v. Historic District Commission, supra, 108 Conn.
App. 699–700.
In the present case, the court in its conclusion and order
stated: “At oral argument before this court in discuss-
ing how the matter should proceed if the court were to
remand the commission’s decision, the commission’s
counsel agreed that the record on this application would
be sufficient for the commission to renew its delibera-
tions.
“Thus, as the industrial [zone] exception does not apply
to the plaintiff’s application, the court hereby sustains
the plaintiff’s appeal in part and remands the matter to
the commission for further proceedings on the plaintiff’s
application under § 8-30g (g) (1). The commission may
not supplement the record further with evidence or tes-
timony and must begin its deliberations anew, with an
open mind, to review the application, all documents and
testimony in the record to date relating to the proposed
development on the site under § 8-30g (g) (1). The com-
mission must disregard any previous discussion before
the commission and between and among the commission
members about the industrial [zone] exception and any
documents and testimony pertaining thereto, including
the vote taken on March 21, 2023, as if it had never been
heard, stated, submitted, read, or even taken place.
“Once the commission has rendered its decision, the
commission’s counsel shall supplement the record of
these additional proceedings and the commission’s deci-
sion and the court will conduct further proceedings as
necessary.”
The present case fits within the second type of remand
that this court in Barry stated was addressed in Schief-
felin & Co., which is “a remand that requires that the
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

agency hold a new hearing on an issue that it has never
before considered. In that event, the trial court’s judg-
ment may not be immediately appealed because the
agency proceedings are incomplete; it has not finished
adjudicating the application or petition before it.” Barry
v. Historic District Commission, supra, 108 Conn. App.
700.
In Schieffelin & Co., our Supreme Court dismissed the
defendants’ appeal from the trial court’s ruling remand-
ing the case to the defendant Department of Liquor
Control. Schieffelin & Co. v. Dept. of Liquor Control,
supra, 202 Conn. 408. The remand order directed the
Department of Liquor Control to determine whether
the plaintiff substantively had established cause for its
termination of the individual defendants’ distributor-
ships. Id. In concluding that the decision was not a final
judgment, the court provided the following analysis:
“Under our existing case law, we have distinguished,
with reference to that question, between two kinds of
administrative remands. A trial court may conclude that
an administrative ruling was in error and order further
administrative proceedings on that very issue. In such
circumstances, we have held the judicial order to be a final
judgment, in order to avoid the possibility that further
administrative proceedings would simply reinstate the
administrative ruling, and thus would require a wasteful
second administrative appeal to the Superior Court on
that very issue. See, e.g., Watson v. Howard, 138 Conn.
464, 468, 86 A.2d 67 (1952); Santos v. Publix Theatres
Corp., 108 Conn. 159, 161, 142 A. 745 (1928). A trial
court may alternatively conclude that an administrative
ruling is in some fashion incomplete and therefore not
ripe for final judicial adjudication. Without dictating the
outcome of the further administrative proceedings, the
court may insist on further administrative evidentiary
findings as a precondition to final judicial resolution of
all the issues between the parties. See General Statutes
§ 4-183 (e). Such an order is not a final judgment.” Schief-
felin & Co. v. Dept. of Liquor Control, supra, 410.
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

Watson v. Howard, supra, 138 Conn. 464, a zoning
appeal, is also instructive. In that case, the plaintiff
appealed an order of the Norwalk zoning board of appeals.
Id., 465. The trial court sustained the appeal because of
a member’s improper participation in the board’s deci-
sion and remanded the matter to the board for another
hearing. Id., 467. The defendants challenged the jurisdic-
tion of our Supreme Court to hear the appeal, claiming
that the judgment of the trial court was not final. Id. In
concluding that the judgment was final, the Supreme
Court stated: “The test of finality is whether the rights
of the parties are concluded so that further proceedings
cannot affect them. . . . The judgment in question met
that test. The rights of the parties, in so far as they were
capable of being affected by any subsequent proceedings
connected with the matter then in court, were forever
concluded. Nothing further remained to be decided by
the court. The appeal was terminated. The issues which
it presented were all resolved. If a new hearing should
be held and if the board should again reach a conclusion
adverse to the plaintiff, he would be required to insti-
tute a new appeal to the [Superior Court]. It follows
from what we have said that the judgment was a final
one from which an appeal to this court lies.” (Citations
omitted.) Id., 467–68.
The common thread of Watson, Kaufman and Schief-
felin & Co. is that, if a trial court remands a case for a
substantive decision on an issue that should have been
decided on the basis of the administrative record, the
judgment is not final. “A judgment of remand [to a zoning
commission] is not final . . . if it requires [the agency to
make] further evidentiary determinations that are not
merely ministerial.” (Internal quotation marks omitted.)
Barry v. Historic District Commission, supra, 108 Conn.
App. 691. In contrast, “a trial court’s remand to a zon-
ing commission is an appealable final judgment if it (1)
does not require further evidentiary determinations by
the commission or (2) dictates the outcome of the post-
remand proceedings before the commission with respect
Vessel RE Holdings, LLC v. Town Plan & Zoning Commission

to the application at issue.” (Internal quotation marks
omitted.) Id., 694–95.
Here, the plaintiff appealed the commission’s applica-
tion of the industrial zone exception under § 8-30g (g)
(2) and the commission’s refusal to act on the site plan
application even though it had a complete administra-
tive record for doing so. As previously discussed, the
plaintiff also claimed on appeal to the trial court that the
site plan should have been automatically approved under
§ 8-3 (g) (1). The court sustained the plaintiff’s appeal
as to the industrial zone exception; however, it rejected
the plaintiff’s argument that the application should be
automatically approved. Instead, the court acknowledged
that the merits of the site plan application had not been
addressed by the commission under § 8-30g (g) (1) and
remanded the case to the commission for evidentiary
determinations, based on the existing record, on the
merits of the plaintiff’s site plan application under that
provision. Specifically, the court’s remand order directed
the commission to “begin its deliberations anew, with an
open mind, to review the [site plan] application, all docu-
ments and testimony in the record to date relating to the
proposed [affordable housing] development on the site
under § 8-30g (g) (1).” Thus, because the court ordered
further evidentiary determinations by the commission,
the rights of the parties had not been fully adjudicated.
The court’s remand order directs further deliberation
and action by the commission on an issue that was clearly
before it based on the existing administrative record but
not addressed. For the foregoing reasons, the decision
from which the commission appeals is not a final judg-
ment.
The appeal is dismissed.
In this opinion the other judges concurred.